HKSAR v. Ateeq Ur Rehman

DCCC 900/2022

[2024] HKDC 1380

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 900 OF 2022

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REASONS FOR SENTENCE

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1.The second defendant of this case pleaded guilty to 1 count of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210 (the first charge)  and 1 count of failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap. 221 (the second charge).

Facts

2.On 15 February 2022 at around 5:30 p.m., the foreman in charge of the demolition project at Ground Floor, No. 95 Oak Street, Tai Kok Tsui, Kowloon (“the Location”), checked and confirmed that entrances were secured with metal chains and padlocks before leaving.

3.On 16 February 2022 at around 1:00 a.m., police officers conducted an anti­-burglary operation in the vicinity of the Location.  At around 3:33 a.m. on the same day, PC17857 saw Mohammad Shahzad (“Mohammad”)  and an unknown person entered a rear lane furtively at the Location.  Two minutes later, the second defendant joined them.

4.The three of them then walked up the rear staircase of the building at Nos. 89 - 91 Oak Street.  They soon left the staircase together and walked towards Nos. 93 - 95 Oak Street and entered the building thereat.

5.At 3:57 a.m., they left Nos. 93 - 95 Oak Street and returned to the rear lane at the building at Nos. 89 - 91 Oak Street.  The second defendant separated from Mohammad and the unknown person.  Shortly afterwards, the second defendant joined them again outside No. 55 Anchor Street, during which the unknown person placed a nylon bag on a trolley and Mohammad put a red recycling bag on the nylon bag and tied the bags together and left.

6.At 3:59 a.m., police officers intercepted Mohammad and the second defendant.  They put up a struggle but were subdued by the police officers. Upon search, it was found that the nylon bag contained 19 pieces of copper pipes (worth HK$5,000)  and an orange plier was found on the trolley.

7.It was subsequently confirmed that the 19 pieces of copper pipes belonged to the Location.

8.CCTV camera installed in an adjacent building captured the second defendant went up the staircase at Nos. 89 - 91 Oak Street and later took a long copper pipe thereat.  Mohammad also walked up the staircase while the second defendant carried some pipes away.

9.In a subsequent cautioned video-recorded interview, the second defendant claimed that he was on his way to a subway as he was homeless, he asked Mohammad for cigarette and had no knowledge about the nylon bag or plier.

10.The second defendant was subsequently prosecuted with the first charge in this case.  At the hearing on 4 July 2023 at the District Court, the case was adjourned to 29 November 2023 at 10:00 a.m.

11.On 29 November 2023, the second defendant did not attend the hearing.  A warrant of arrest was issued against the second defendant.

12.On 15 December 2023 at around 8:30 p.m., the second defendant was intercepted by a police officer for stop and search at Mong Kok.  His wanted status was revealed and he was re-arrested.

13.Under caution, the second defendant claimed that he overslept in the morning on 29 November 2023 and he arrived at the District Court at around 1:45 p.m. on the same day.  While waiting outside the courtroom, he received a call from his mother at 2:30 p.m. saying that his younger brother needed blood transfusion.  He thus left for United Christian Hospital to see how he could be of assistance.

Mitigation

14.The second defendant is aged 37 and was born in Hong Kong.  His father has a brain tumor and is unable to work while his brother is suffering from leukaemia.  He has a girlfriend with whom he has one daughter aged 1 year and 11 months and one stepdaughter aged 5.  At the time of the first offence, the second defendant, his girlfriend and two daughters were homeless and lived in a subway close to the location of the first offence.  His girlfriend and two daughters are now living with his mother-in-law.

15.Prior to Covid, the second defendant worked as a full-time decoration worker earning about HK$26,000 per month.  Since Covid, the second defendant had been unemployed for about 3 years prior to the first offence.

16.The second defendant has 4 conviction records, one of which is robbery.

17.The defence referred to several authorities and submitted that at the time of the first offence, the second defendant was homeless living under an underpass in close proximity to the Location.  It was submitted that this might be considered as an opportunistic burglary and a lower starting point could be adopted[1]. Further, it was submitted that the second defendant’s financial situation at that time might have a causative contribution towards his criminality and may in some way serve in mitigation[2].

18.For the second charge, it was submitted that the second defendant surrendered himself at Mong Kok Police Station the following day but as a warrant had yet to be issued, he was not re-arrested until 15 December 2023. This Court was urged to consider the second defendant’s concern over his brother’s condition, that he tried to surrender himself on the next day and his bail money was forfeited and adopt a more lenient approach in sentencing of the second charge[3].

Sentence

19.For the first charge, it is well settled that the starting point for burglary of non-domestic premises without any aggravating feature is 30 months’ imprisonment.

20.In the present case, the entrances of the Location were secured with metal chains and padlocks.  It was not an open office as stated in HKSAR v Sim Ka Wing, CACC 450/2000.  I do not consider it was an opportunistic burglary even if the second defendant resided nearby.  Given the offence was committed by 3 persons including the second defendant, this is an aggravating feature and the 30 months’ starting point is enhanced by 3 months for this aggravating feature.  Although the second defendant has 1 previous conviction record for robbery, that record was in 2011 and I will not regard this as an aggravating feature.

21.In HKSAR v Lam Chi Kwan, CACC 1105/2018, the Court of Appeal repeated that “As a mater of law the judge was entitled to, and normally should, reduce the discount to be awarded for a plea of guilty when the plea is delayed because the defendant has absconded.  It is settled law that the reduced discount should be between 20%-25%[4].” In the present case, the second defendant did go to the District Court after he overslept.  He only left due to his concern for his brother’s medical condition.  The second defendant then went to Mong Kok police station on 30 November 2023 but was not re-arrested for the present case.  The period of absconding is about 2 weeks.  In the circumstances, I am prepared to give him the usual 1/3 discount for his plea despite he had absconded for 2 weeks.  

22.Given the second defendant’s plea, the sentence for the first charge is reduced to 22 months’ imprisonment.  While I note the second defendant’s family circumstances, this is not a mitigating factor.  Apart from his guilty plea, there is no other mitigating factor in this case justifying a further reduction in sentence.  The sentence for the first charge is 22 months’ imprisonment.

23.For the second charge, the prosecution confirmed the second defendant went to Mong Kok police station on 30 November 2023 and he was arrested for non-payment of fine on that occasion.  I accept the second defendant could not be re-arrested for the present case if the warrant of arrest had not been issued at that time.  His period of absconding is 2 weeks.  Having consider all circumstances, I consider the appropriate starting point to be 1.5 months.  The sentence is reduced to 1 month given the second defendant’s plea.

24.Having taken into consideration the totality principle and the fact that the two offences did not arise from the same incident, I consider the sentence for the second charge should run consecutively to the sentence for the first charge.  Therefore, the total sentence of the two charges is 23 months’ imprisonment.